At common law, contributory negligence acted as a complete defence. However, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence operates as a partial defence whereby the courts can apportion loss between the parties. This makes it a more attractive option to the courts than other defences which can operate harshly and absolve a defendant of liability no matter how much at fault they may be. Consequently the defences of volenti non fit injuria and ex turpi causa are perhaps of less significance.
S.1(1) Law Reform (Contributory Negligence) Act 1945 provides that where a person suffers damage as a result partly of his own fault and partly the fault of another(s), a claim shall not be defeated by reason of the fault of the person suffering damage. Thus contributory negligence operates as a partial defence. At first instance in Pitts v Hunt [1990] 3 All ER 344 (Case summary) the court used this section to find that the Claimant was 100% contributory negligent. However, this was held to be illogical and inconsistent with the wording of the Act which requires the damage to be partly the fault of both parties.
Contributory negligence can operate in three party situations. The courts must, however, always assess the degree to which the Claimant contributed to his own injury:
